BHOLANATH RAKSHIT Vs. BISWESWAR RAKSHIT

JUDGEMENT

(1.) The petitioners who are accused in a case under Section 323, I. P. C., pray for setting aside an order of the trial Court discharging prosecution witnesses before their cross-examination and, in the alternative, for transfer of the case to some other Court.

(2.) On the 30th December, 1955, the date fixed for the appearance of the accused, petitioner Benoy Rakshit was present but Bholanath and Satya Kinkar were absent on the ground of illness. For each of the absentee accused was filed a medical certificate with a prayer for an adjournment. Bholanath was said to be suffering from pneumonia and Satya Kinkar was alleged to have been suffering from typhoid. The complainant's version was that both the accused were hale and hearty, and the learned Magistrate was of the view that the physicians who gave the certificates were not reliable. Why the learned Magistrate regarded the physicians as unreliable we cannot say. The learned Magistrate adjourned the case to 13th January, 1956, but awarded Rs.25/- as adjournment costs against the accused. On the next date, viz., 13th January, 1956, all the petitioners were absent. Two of them, Bholanath and Satya Kinkar, were said to be still ill; the other accused Bejoy was said to be then mourning the death of his father. Further medical certificates by other physicians were produced on that day but the learned Magistrate again disbelieved the accused's version and called upon the defence Mukhtear to cross-examine the prosecution witnesses who were in attendance. The learned Muktear haying decline to do so, the learned Magistrate discharged all the prosecution witnesses and fixed the 20th January, 1956, for examination of the accused under Section 343, Criminal P. C., and for arguments. As the adjournment costs awarded on the previous occasion remained unpaid, the learned Magistrate ordered the issue of distress warrants as well as warrants of arrest against the accused with a bail of Rs. 1,000 for each. Thereafter the accused moved the learned Sessions Judge for transfer of the case under Section 528, Criminal P. C. This application was refused.

(3.) Mr. S. S. Mukherjee has taken the point that in the circumstances disclosed as the learned Magistrate was bound to adjourn the case on the first occasion, he had no power to order any adjournment costs. Mr. Mukherjee has further contended that consequently the order for the issue of the distress warrants for the realisation of the adjournment costs was without Jurisdiction.